Probate is the legal process of reviewing and administering the estate of a deceased person -- called a decedent -- in the appropriate probate court. When a decedent leaves behind a valid will, it is referred to as dying “testate” and the adjudicating court is bound to follow the instructions defined therein. While probate can be lengthy, lasting anywhere from a few months to two years, the process is necessary to settle all of the decedent’s unresolved matters while ensuring his final wishes are carried out properly.
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To initiate probate, the appointed executor files the original signed copy of the will with the probate court in the county where the estate resides. In most cases, the estate’s address is the same as the decedent’s primary residence at the time of death. If the will does not appoint a personal representative for the decedent, or the executor does not want to file the will, a beneficiary or other surviving relative can file the will for probate, instead. The probate court reviews and confirms the validity of the will. Unless the will is missing a requisite element -- such as the decedent’s signature -- or a claim has been filed contesting the will's validity, the court usually declares the will is valid and legally binding.
Settling Outstanding Claims
Before dividing any portion of the estate, the court must settle any unresolved claims against the decedent, including outstanding debts incurred during the decedent’s lifetime, liens against the primary residence or other property, overdue child support obligations and similar debts. The court always uses cash assets not explicitly bequeathed to the decedent’s beneficiaries first, and then liquidates any real property to cover any remaining obligations. If the estate owes more in outstanding debts than it currently owns, the estate faces abatement and the court liquidates the beneficiaries’ inheritances to cover these obligations. Any remaining assets are then divided among the beneficiaries at a prorated percentage based on what the beneficiaries would have inherited if the estate had not undergone abatement.
Beneficiaries & Dividing the Assets
Once all outstanding claims are resolved, the court divides the assets according to the instructions within the will. The executor is often responsible for physically delivering the assets to each beneficiary. The court may or may not retitle property to the recipient prior to this; if not, the beneficiaries can request transfer by furnishing a copy of the will to the county registrar for formal retitling. Any property not explicitly bequeathed to a specific beneficiary becomes part of the estate’s “rest and residue.” If the decedent named a beneficiary to the residue, he will receive the full remainder of the estate. Otherwise, the executor may liquidate the remaining property and use the cash for covering the estate’s legal costs, attorneys’ fees and other expenses incurred in administering the estate.
“Reading” of the Will
Contrary to common belief, a ceremonial “reading of the will” does not occur during probate. Perpetuating this myth are the fictional portrayals of effervescent gatherings where the decedent’s attorney reads the will to the surviving family. In reality, most relatives never see the will -- once the executor files for probate, the court is in permanent possession. Curious parties can request a copy of the will for review from the court clerk after probate concludes, but unless a person explicitly requests it, the will is not available for reading.
References & Resources
- "Probate & Administration of Estates"; Emma Gaudern et al.; 2007
- "Probate in Practice"; Thomas H. Tristram et al.; 2000
- "Probate Practice and Procedure"; A. K. Biggs et al.; 2003
- "American Probate Law and Practice"; Frank Sumner Rice; 2010
- National Center for State Courts: State Probate Court Websites by State
- Legal Information Institute: State Probate Codes (By State)